Ms Pauline Oni v London Borough of Waltham Forest and others — 2025

This was a consolidated preliminary hearing before Employment Judge Crosfill concerning three foster carers (Ms Oni, Ms Dawkins and Ms Reid) and their respective local authorities, with the Secretary of State for Education joined as intervener. The Tribunal was asked to determine, in advance of any substantive hearing, whether foster carers can access employment rights given the Court of Appeal authority in W v Essex County Council [1999] Fam 90, which holds that the relationship between foster carer and local authority is statutory rather than contractual.

The Tribunal held that it remained bound by W v Essex County Council and therefore, on a domestic construction of s.230 ERA 1996, s.83 Equality Act 2010, Regulation 3 of the Employment Tribunals Extension of Jurisdiction Order 1994, Regulation 2 of the Working Time Regulations 1998 and s.54 National Minimum Wage Act 1998, the claimants could not show jurisdiction. EU law was held not to assist: there is no binding CJEU authority requiring a different reading for race or age discrimination, and although the Working Time Directive treats the claimants as workers, they fall within the exception in Article 2 of Directive 89/391/EEC and Regulation 18(2)(a) WTR 1998.

Applying s.3 Human Rights Act 1998, the Tribunal held that excluding foster carers from whistleblowing claims under ss.47B and 48 ERA 1996 is an unjustified interference with Article 10 read with Article 14, and that s.230 or s.43K ERA 1996 can be read to allow such claims. Similarly, exclusion from Part 5 Equality Act 2010 was held to be an unjustified interference with Article 8 read with Article 14, and s.83 EqA 2010 can be read to allow discrimination claims. However, Article 1 of Protocol 1 was held not to be engaged for the minimum wage or holiday pay claims, which therefore cannot proceed. No remedies were awarded; substantive merits were not determined at this preliminary stage.